More Powerful Arguments For Trying Terrorists in Civilian Courts

By Daphne Eviatar, Senior Associate, Law and Security

Senator Dianne Feinstein makes a powerful argument in today’s Wall Street Journal that the best place to prosecute terrorists is in regular federal courts.

Rebutting the claims of the president’s “fear-mongering critics” that military commissions will somehow be tougher on terror, Feinstein, who’s earned her anti-terrorism stripes as Chairman the Senate Intelligence Committee, cites just a few of the high-profile terrorists recently convicted of terror-related crimes in Article III federal courts. Those include David Headly, who earlier this month pled guilty to participating in a dozen terrorist plots, including the 2008 attacks in Mumbai that killed 164 people. He then proceeded to provide the federal government with valuable intelligence about other terror plots in the works.

Those who haven’t pled guilty have ended up convicted and behind bars for life. The “Blind Sheik” Omar Abdel Rahman, the “20th Hijacker” Zacarias Moussaoui, and “Shoe Bomber” Richard Reid, for example, are all serving life sentences in maximum security federal prisons, Feinstein writes.

The military commissions, by contrast, have convicted just three terrorists, one of whom did not even put on a defense; the other two have already been freed.

Feinstein still supports having the military commission option, but she insists the president shouldn’t be placed in a legal straitjacket by Congress; he should decide the appropriate venue based on “which system is most likely to produce actionable intelligence, protect our national security, bring terrorists to justice quickly, and keep them behind bars for good.” So far, civilian federal courts have produced the only trials that have done just that.

Even the Bush administration touted the federal courts’ record of prosecuting terrorists, Feinstein notes, celebrating its prosecutors for having “convicted or obtained guilty pleas in 319 terrorism-related and anti-terrorism cases” after September 11, 2001.

In fact, as I’ve noted before, a 2006 Justice Department White Paper highlights “the impressive success of the Department of Justice in the war on terrorism,” and documents “how the criminal justice system operates effectively as an element of national power.”

Recent proposed legislation threatens to largely remove the FBI, the federal courts, and the entire U.S. criminal justice system from the arsenal of weapons available to fight terrorism by requiring that certain terror suspects be held only in military custody and tried only by the largely untested military commissions. Those commissions, as Feinstein points out, provide none of the advantages that their proponents claim: for example, classified evidence is treated exactly the same way in military commissions as in federal courts, and coerced confessions can’t be used in either venue. In fact, the only thing the military commissions offer that federal courts do not is inexperience trying terrorists.

“The record speaks for itself,” says Feinstein.

That record is apparently convincing more people every day. This morning, a national organization of more than 200 relatives of the 9/11 attacks released a video appealing to President Obama to try all Guantanamo detainees — including the alleged mastermind of the attacks, Khalid Sheik Mohammed, and his co-conspirators — in civilian courts rather than military commissions.

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Published on March 31, 2010

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